Morton v. Borough of Ambridge

• Decision Date: 04 January 1954
• Citation: 101 A.2d 661,375 Pa. 630
• Parties: MORTON v. BOROUGH OF AMBRIDGE.
• Court: Pennsylvania Supreme Court

101 A.2d 661

375 Pa. 630

MORTON v. BOROUGH OF AMBRIDGE.

Supreme Court of Pennsylvania.

January 4, 1954

Action in trespass against borough for damages caused when storm sewer collapsed beneath plaintiff's garage floor. The Common Pleas Court, Beaver County, No. 23, March Term, 1952 Frank E. Reed, J., entered judgment for borough on a directed verdict and plaintiff appealed. The Supreme Court, No. 257 March Term, 1953, Chidsey, J., held that in view of testimony that borough failed to inspect and maintain its lateral connections to storm sewer, and that defective lateral connections caused water to seep around storm sewer and weaken the fill which caused its subsequent collapse borough's negligence was a question for the jury.

Reversed and new trial granted.

Myron E. Rowley, Ralph E. Smith, James E. Rowley, Rowley & Smith, Ambridge, for appellant.

Reed, Ewing & Ray, Robert L. Orr, Beaver, Eugene A. Caputo, Ambridge, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

CHIDSEY, Justice.

This is an appeal from a judgment entered on a directed verdict for the defendant borough in an action in trespass to recover for property damage suffered when a storm sewer collapsed.

In April and May of 1948, plaintiff purchased five lots in the Borough of Ambridge, Beaver County. The deeds delivered to plaintiff were made subject to the following easements or conditions: ‘ 3. There is hereby reserved to Charles A. Dickson, his heirs and assigns, the right to enter upon any of the lots and upon any of the streets, alleys or ways which are crossed by a natural drainage course upon the land upon which said plat of lots, streets, alleys and ways, is laid out, which water course is approximately indicated by the line upon the Plan market ‘ A-B.’ This reservation or right of entry is for the purpose of enabling the said Charles A. Dickson or his assigns, or any person or persons acting by or with his consent, to construct a sewer or other appropriate improved water course, it being understood that the private right to Charles A. Dickson hereby reserved shall cease and determine whenever and as soon as a public sewer or other waterway may be constructed to care for the water flowing in said water course.'

‘ 4. This adoption and dedication of streets, alleys and ways is not to be construed as a prohibition upon the construction, maintenance and operation upon the streets, alleys and ways of said plan of any appropriate privately or publicly owned system of pipes for the distribution and supply of water, gas, sewage or other pipeable substance to the owners of the lots embraced in the said plan; provided always that such construction, operation and maintenance [of] pipes for water, gas, sewage or other pipeable substance shall always be construed as conferring a benefit upon the owners of the several lots in said plan, and no owner of nay such lot may or shall have any claim for damage against the said Charles A. Dickson, his heirs or assigns, by reason of such construction, operation and maintenance.’ The rights reserved to Charles A. Dickson had been assigned to the defendant borough in 1942.

Prior to the time plaintiff purchased the lots, and 84-inch storm sewer had been built along the lines of the natural watercourse referred to in the reservation above quoted. The sewer was constructed in various sections, at various times and by various parties. The portion underlying plaintiff's land had been constructed in 1926 by a predecessor in title.

In 1949 plaintiff constructed a one-story, no basement brick building used as an automobile sales and service garage on the site of the five lots he had purchased in 1948. On September 11, 1950, a heavy rainstorm occurred and a portion of the sewer under plaintiff's building collapsed with the result that a hole 30 feet in diameter and 17 feet deep developed in the floor of plaintiff's garage.

At the trial testimony was introduced on behalf of the plaintiff that the defendant borough had connected several lateral sewers to the 84-inch sewer, which had the effect of increasing the flow of water in the storm sewer by some 20%. Plaintiff's expert witnesses testified that the laterals were in a state of disrepair which permitted water to seep of flow into the earth surrounding the sewer rather than to be confined within the sewer itself, and that the defects were such that would have been apparent upon a reasonable inspection. Plaintiff's expert witnesses further testified that this seepage or percolation of water so weakened the fill around the sewer that when it was subjected to the heavy rainstorm of September 11, 1950, the sewer collapsed, and the plaintiff's building...